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2019 DIGILAW 719 (CAL)

Sk Abdul Sattar v. State of West Bengal

2019-07-16

TIRTHANKAR GHOSH

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JUDGMENT : Tirthankar Ghosh, J. The revisional application has been preferred against the judgment and order of acquittal dated 26.02.2003 passed by the learned Additional District and Sessions Judge, 3rdCourt, Suri, Birbhum in Sessions Case No.47/2001, corresponding to Sessions Trial No.4 of July, 2002,wherein charge was framed under Section 302/34 of the Indian Penal Code against the accused/opposite parties. 2. The prosecution case in short, is that the de-facto complainant Sk. Abdul Sattar and his brother Abdul Alim along with their family members have been residing at ChhotoKustikuri village within P.S. Suri for a considerable period of time and their sister who was a widow namely, Umme Salema alias Doli Bibi also stayed with them. The dispute arose almost three years before the incident when Doli Bibi took a loan of Rs.5,000/- (five thousand)from the accused person by mortgaging her 15 cottahs of land at Siasala Mouza. Doli Bibi returned the amount of Rs.5,000/- (five thousand) which she had taken but the accused persons did not release either the title deed or delivered possession of the land in favour of Doli Bibi. On or about 9.01.2001 at about 7.30/8.00 a.m. when the de-facto complainant was going towards his land situated on the eastern field of Chhoto Kustikuri village and his brother Abdul Alim was following him in a bicycle along with his stationery articles, at the time when they reached near the house of the accused persons, the accused persons being armed with sword and tangi attacked his brother Abdul Alim. 3. It was alleged that Nazir Hossain caused grievous hurt with a sword on the left shoulder of the deceased Abdul Alim while Maksed caused grievous hurt with a tangi of the various parts of the body of the deceased. After sustaining severe injury the victim fell down on the road in front of the house of the accused persons and died. As the de-facto complainant deposed that he was afraid of the attack and manner of assault being inflicted upon the victim, he could not assist or come to rescue of his brother out of fear. The accused persons fled away from the spot immediately after the victim succumbed to his injury. As the de-facto complainant deposed that he was afraid of the attack and manner of assault being inflicted upon the victim, he could not assist or come to rescue of his brother out of fear. The accused persons fled away from the spot immediately after the victim succumbed to his injury. The de-facto complainant lodged a written complaint before the officer-in-charge, Suri Police Station, after which he reached the place of occurrence along with force and consequently Suri P.S. Case No.5/2001 dated 9.01.2001 under Section 302/34 of the Indian Penal Code was registered for investigation. 4. After completion of investigation, the police submitted charge-sheet under Section 302/34 of the Indian Penal Code against both the accused persons and the learned Magistrate on 6.04.2001 was pleased to take cognizance of the offence and thereafter committed the case to the Court of the learned Sessions Judge, Birbhum, which was thereafter transferred to the Court of the learned Additional District & Sessions Judge, 3rd Court, Suri, Birbhum for trial and disposal. 5. On or about 22.11.2001 charge was framed, against the accused persons under Section 302/34 of the Indian Penal Code against both the accused persons, when the substance of the charges were read over to them to which they pleaded not guilty and claimed to be tried. 6. The prosecution in order to prove its case relied upon 13 witnesses and number of documents. The defence, however, did not tender any witness in evidence. 7. The learned Court thereafter examined the accused persons under Section 313 of the Criminal Procedure Code and fixed date for arguments. After conclusion of arguments of both the parties the learned Trial Court was pleased by judgment and order dated 26.02.2003 to acquit the accused persons from the charges framed against them. 8. The deposition of the prosecution witnesses reveal that the de-facto complainant Sk. Abdul Sattar is only eye witness to the incident and none of the other witnesses according to the prosecution case saw the incident with their own eyes. 8. The deposition of the prosecution witnesses reveal that the de-facto complainant Sk. Abdul Sattar is only eye witness to the incident and none of the other witnesses according to the prosecution case saw the incident with their own eyes. The learned Court below after taking into account the evidence of all the prosecution witnesses categorically held that although the prosecution tried to attribute motive by narrating that the accused persons have illegally withheld the 15 cottahs of land belonging to Doli Bibi in spite of the amount of Rs.5,000/- (five thousand)being returned to them, the accused persons have denied the same and took the plea that de-facto complainant namely Sk. Abdul Sattar had hurled a bomb upon the accused Maksed Hossain earlier and over the said issue Suri P.S. Case No.37/2002 under Section 326/307 of the Indian Penal Code was registered against him. The accused persons also denied the place of occurrence and they have taken a specific plea that Abdul Alim was killed in the night of 9.01.2001 and the place of occurrence is a different place. It has been reflected in the judgment that only PW-1 and PW-2 being the brother and sister of the deceased supported the prosecution case and four of the witnesses did not support the prosecution case. The learned Court while arriving at his finding relied upon the consistent version which was available in the written complaint/charge-sheet as well as the deposition in the Court of PW-1 who stated that in the eastern side of the village Chhoto Kustikuri PW-1 had landed property and at that time of the morning he was going towards the field/land situated over there. The learned Court while scrutinising the statement of PW-1, relied upon the deposition of PW-6 Kaizar Sekh who stated that in the eastern side of the field of village Chhoto Kustikuri he had landed property andPW-1 Abdul Sattar has no landed property. 9. The learned Trial Court also took into consideration the deposition of the prosecution witness No.1, de-facto complainant Sk. Abdul Sattar who categorically deposed at the time when victim Abdul Alim was being assaulted, Haider, Adud and Kaizer and other villagers came to the place of occurrence. The prosecution relied upon the evidence of Adud and Kaizer as PW3 and PW-6 but these two witnesses did not corroborate the evidence of PW-1. Abdul Sattar who categorically deposed at the time when victim Abdul Alim was being assaulted, Haider, Adud and Kaizer and other villagers came to the place of occurrence. The prosecution relied upon the evidence of Adud and Kaizer as PW3 and PW-6 but these two witnesses did not corroborate the evidence of PW-1. The learned Court also took into account the evidence of PW-2, in view of the fact that she deposed in evidence that hearing hue and cry she rushed to the place of occurrence which is in front of house of the accused person and at that time she found the accused persons were fleeing away. According to the learned Trial Judge the residential house of PW-1 and PW-2 is at the western end of the village and the place of occurrence is not less than half kilometer away from their house. The learned Court also observed that Abdul Alim was murdered and he died by sustaining not less than eight grievous injuries as stated by PW-9 the doctor. On the same breath learned Trial Court also held that it is not in doubt that the victim sustained injuries and he was murdered but it was the duty of the prosecution to prove beyond reasonable doubt that this accused persons murdered the victim. It is also seen from the evidence of the witness PW-5 and PW-8 who did not support the prosecution case as they have categorically stated that the Police authorities obtained their signature in blank sheet and they did not recover anything from the sugarcane field. According to the learned Trial Judge the plea of the defence that the dead body of Abdul Alim was lying under a culvert and the dead body was recovered from the said culvert is also supported by the evidence of PW-3 who deposed that the dead body was lying at a place near the culvert which is 100/150 cubits away from the house of accused Maksed Hossain and the same is corroborated by PW-6. 10. 10. The learned Trial Court thereafter came to the conclusion that except PW-1 and PW-2 whose presence at the place of occurrence is doubtful, no evidence has been relied upon by the prosecution to strengthen it case, rather the version of defence as seen from the evidence that the complainant and the accused persons are related to each other, further there was continuous enmity in between the family of the accused persons and the defacto complainant and as such the possibility of falsely implicating them in the murder of Abdul Alimis more plausible explanation. 11. It would not be out of place to state the settled principle of law that in a revision against an order of acquittal the court has to keep in mind the presumption of innocence in favour of the accused and the same being fortified by an order of acquittal. If the view adopted by the Trial Court is a reasonable one and the conclusion arrived at are derived from the materials on records the order of acquittal should not be interfered with. Again on an appreciation of evidence if two views are reasonably possible, one supporting acquittal and the other indicating conviction then it would not be proper for the High Court to interfere with an order of acquittal merely because it takes the view that it would have accepted a different view sitting as a Trial Court. 12. It has been held in K. Chinaswamy Reddy Vs. State of Andra Pradesh and Anr, 1962 AIR(SC) 1788) as follows: "........but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice...... ".....These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused, or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law." 13. Taking into account the settled principle of law, the reasons assigned by the learned Trial Court, the scrutiny of the evidences and foundation on which the Trial Court arrived at its conclusion, I do not think this is a fit case for interference. Further there is no manifest error on the face of the record which could appease my judicial conscience to set aside the impugned judgment and order of acquittal. 14. As such therevisional application being CRR No.914 of 2004 is dismissed. 15. The lower Court records be sent down immediately to the Court below. 16. The Department is directed to communicate the order to the Court below. 17. Urgent certified photocopy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.